HARI SAHU Vs. PASORI SAHU

JUDGEMENT

(1.) THIS petition is for revising an order under Schedule 22 (3), Criminal P. C., passed by the Sessions Judge of Cuttack under the following circumstances.

(2.) THE petitioner was tried for the offence of house trespass Under Section 448, Penal Code and convicted by a Magistrate on 27 -6 -1949. His appeal to the Sessions Judge was disposed of 10 -8 -1949 and though the conviction was maintained the sentence of fine was reduced. A criminal revision to this Hon'ble High Court was dismissed on 16 -9 -1949. Till then the opposite party did not apply to any of the three Courts for action under Schedule 22, Criminal P. C. On 24 -11 -1919 for the first time the opposite party applied to the appellate Court (the Sessions Judge, Cuttack) praying for an order for restoration of possession of a portion of the house which the petitioner was said to be occupying forcibly. The Court passed an ex parte order allowing the petition. Thereupon, the petitioner filed an application for reconsideration of the ex parts order and on 17 -1 -1950 the Sessions Judge refused to reconsider the same. This revision petition has been filed against that order dated 17 -1 -1950.

(3.) MR . Pal has, however, relied on a series of decisions of almost all other High Courts taking a contrary view. In Fida Bussain v. Sarfaraz Hussain, A. I. R. (20) 1933 Pat. 617 : (34 Cr. L. J. 940), a single Judge relying on an earlier decision of the Patna High Court held that there was nothing in Schedule 22 (3), Criminal P. C., to limit the jurisdiction of an appellate Court to the passing of an order within one month either of the original conviction or of the appellate order. It was left to the discretion of appellate and revisional Courts not to exercise their powers under this section in cases where there has been undue or excessive delay in moving the Court for its use. The same view has been taken in a later Division Bench decision of the Patna High Court reported in Gudri Mahton v. Jangi Mahton, A. I. R. (21) 1984 Pat. 154 : (35 Cr. L. J. 1188). The Nagpur High Court has taken the same view in Namdeo Atmaram v. Emperor, A. I. R. (25) 1938 Nag 316 : (39 Cr. L. J. 342) which has been followed in Ramnath Sheonarayan v. Sonaji Krishanji,. A. I R. (85) 1948 Nag 260 : (49 Cr. L. J. 383). Similarly the Lahore High Court in Roda v. Autar Singh A. I. R. (261 1938 Lab. 839; (40 Cr. L. J., 380) and the Allahabad High Court in Nihal Singh v. Emperor, A. I. R. (26) 193 & ALL. 662 : (40 Cr. L. J. 958) have taken the same view. My attention has not been drawn to a decision of any High Court which has taken the view of the single Judge of the Calcutta High Court in Abdul Mannan v. Taiyab Ali, A. I. B. (34) 1947 Cal. 390 : (48 Cr. LJ. 908).